the contribution of databases and customary law to the protection
TRANSCRIPT
The Contribution of Databases and Customary Law to the Protection of Traditional
Knowledge
Nicolas Brahy
Abstract
The current situation of traditional knowledge is somewhat paradoxical. It is simultaneously
eroding and the object of growing interest by scientists. In this context, TK holders complain
about he misappropriation of their knowledge and formulate two sets of claims. First they ask
for some protection of their intellectual property. Second, they demand the respect of their
customary laws arguing that they do not ask to be granted new rights but the respect of their
existing rights. Regarding the first claim, little progress has been made after many years of
debate; probably because participants rely on right-based justifications that offer little
guidance to design effective and transferable property rights. I suggest following a double
approach: first looking at the practices of TK holders, second using a utilitarian justification
that provides useful insights to design effective property rights. I conclude that there are
strong arguments in favor of the creation of database of traditional knowledge. Regarding the
second claim, no progress has been made because it is perceived as political demand for self-
determination. I also suggest adopting a utilitarian approach that makes us regard this claim
as a demand of articulation between custom or norms-based systems of innovation and the
legal system of intellectual property law. This enables us to look at solutions that have
already been tested for other norms-based systems of innovation that also had to organize
their insertion in the legal system of intellectual property.
Nicolas Brahy is currently a phd fellow at the Centre for Philosophy of Law, Université
Catholique de Louvain ; email : [email protected]. He was a visiting fellow at
the United Nations University Institute for Advanced Studies from septembre 2005 to July
2006. His research interests include protection of traditional knowledge, intellectual property
rights and copyright, governance and institutional analysis.
Nicolas Brahy
Centre for the Philosophy of Law
Place Montesquieu, 2
B-1348 Louvain-la-Neuve
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The Contribution of Databases and Customary Law
To the Protection of Traditional Knowledge*
Nicolas Brahy **
Introduction
Traditional knowledge (TK), broadly defined, refers to any knowledge, creation, innovation
or cultural expression, which is held by local or indigenous communities and has generally
been transmitted from generation to generation. Traditional Knowledge is generally regarded
as pertaining to a particular people or its territory, and is constantly evolving in response to a
changing environment (WIPO 2001). Types of traditional knowledge include agricultural
knowledge, medical knowledge, ecological knowledge and cultural knowledge. This article
focuses on the portion of traditional knowledge, sometimes referred as ethnobotanical
knowledge, that concerns uses of genetic resources, which can be useful for agricultural and
pharmaceutical research and development (R&D) and for environmental conservation.
The current state of traditional knowledge is somewhat paradoxical. At its source, TK has
been greatly eroded. This is for a series of reasons: (i) the economic and political conditions
of local and indigenous communities are often fragile, (ii) the transmission of knowledge
from one generation to another is weakened as younger generations become attracted to a
more modern way of life, and (iii) the environment and biodiversity surrounding TK holders
is also disappearing (Permanent Forum on Indigenous Peoples, 2006). This is all happening
while the value of traditional knowledge is increasing as scientists demonstrate a growing
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interest in TK as a source of information for their research. In this context, TK holders
complain about the “misappropriation” of their knowledge. Misappropriation occurs when
firms or scientists patent TK related inventions without prior informed consent.
Misappropriation also occurs when scientists place TK in the public domain by documenting
it in academic publications without prior informed consent.
As a reaction to this misappropriation, TK holders have enounced a series of claims that can
be summarized as followed:
-To be identified as author or inventor of their knowledge.
-To be able to control access to their knowledge
-To be compensated for its use.
-To preserve their cultural identity
-To preserve the organizational structure that enables the continuous production, use
and conservation of their knowledge (Okediji, 2002)
These claims can be divided into two sets. The first set gathers the three first claims that are
directly related with intellectual property protection. The second set of claims includes the
two last demands; they are more loosely related to intellectual property but they do concern
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the conditions producing TK innovation. Often, TK holders, notably indigenous peoples, use
a different vocabulary and ask for the respect of their customary law in a broader claim of
self-determination. It is worth looking at this second set of claims in order to account for the
conditions producing TK innovations.
After a few years of international debate, there seems to be a consensus on the need to answer
to the above claims –at least for the first set. However, there has been little progress in
proposing and implementing any effective solutions. As for the first set of claims, TK holders
have a kind of "virtual" right in their knowledge. It is virtual in the sense that it is still
ambiguous whether or not the right exists and is just ineffective, or whether it is yet to be
created. Regarding the second set of claims, no real progress has been observed.
In the first part of this essay, I argue that lack of progress in providing effective protection for
TK (claim set one) can be explained by the fact that most participants to the debate explicitly
or implicitly refer to justifications in terms of moral or natural rights for TK protection. These
rights-based justifications have been useful and effective in creating a consensus on the need
to protect TK. However, they offer little help to design effective and transferable property
rights because they do not take into account the conditions of TK use or the effectiveness of
property rights.
In an attempt to overcome the above difficulties, I suggest following a double approach. First,
I look at how TK holders attempt to protect their knowledge by creating TK databases in the
field. Second, I adopt a utilitarian approach that provides a better understanding of the
practices developed by TK holders to protect their knowledge. This approach further enables
me to propose a complementary justification for TK protection that provides useful elements
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to create a customized and effective protection mechanism – Or suggest resorting to an
existing protection mechanism. I conclude that there are strong arguments in favor of the
creation of databases of TK.
In the second part of this essay, I argue that little progress has been made in the recognition
of customary law (claim set two) because it is perceived solely as a political demand for self-
determination. Again I suggest adopting a utilitarian approach so that we may view these
claims as a demand of recognition of the existence of norms-based systems of innovation and
a demand to find mean to articulate them with the legal system of intellectual property law.
This will enable us to look at solutions that have already been tested on other norms-based
systems of innovation that were forced to articulate themselves within the legal system of
intellectual property. I conclude by suggesting combining property rights on databases and
contracts to arrange this insertion.
1. Protecting traditional knowledge…
The Convention on Biological Diversity (CBD), which entered into force in December 2003,
calls for the protection of TK. This assertion of protection for TK in article 8J, however, is
more of a political concept assigning objectives to states rather than a clear property right for
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TK. Therefore, there is need for further (legal) action at international or national level to
implement the intention behind article 8J.
1.1 The Current Debate on Traditional Knowledge Protection
At the international level, the most dynamic forum on TK protection is the Intergovernmental
Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore
of the World Intellectual Property Organization (WIPO-IGC). This committee is in charge of
preparing guidelines, model laws and/or an international treaty on the protection of TK.
Through the reading of WIPO-IGC documents; it appears that the notion of
“misappropriation” acts as an organizing principle in the design of a protection regime, and to
some extent as a justification for the protection of TK. At the national level, some states have
enacted sui generis legislation attempting to implement article 8J (WIPO 2003). Some of
these national laws contain provisions for the creation of TK registries. These legislative
provisions could provide a model for an international regime. For now, however, the effect of
these national laws is limited by the fact that they only apply in the territory of their
respective state (cf. infra).
1.1.1 The Notion of Misappropriation
There appears to be a large consensus on the objectives of protection. Preventing
misappropriation involves both defensive protection, i.e. preventing the acquisition of
intellectual property rights over TK by parties other than customary TK holders, and positive
protection, i.e. providing legal means to enable TK holders to restrain third parties from
unauthorized uses of protected material, and to empower TK holders to negotiate for
compensation if and when unauthorized acts occur. Thus, the objectives of protection drafted
by WIPO-IGC correspond to the first set of claims of TK holders.
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However, there is much less clarity and consensus on the design of the protection mechanism.
Document GRTKF/IC/8/5 of the WIPO-IGC, entitled “Protection of Traditional knowledge:
Revised objectives and Principles”, mentions broad rights but poorly defines them.
The “object of protection” is defined in a comprehensive but vague manner. Article 3 on the
“General Scope of Subject Matter” provides a useful definition of TK and states that
protection should not be limited to any technical field. Article 4 on the “Eligibility for
Protection” establishes the traditional character of knowledge as the requirement for its
protection. Knowledge must come from a traditional context, be associated with a traditional
or indigenous community, and be part of the cultural identity of this community. However, if
the traditional character of knowledge is to be selected as a criteria for protection, one must
explain how to verify that the conditions for protection are met, who will undertake the
verification, whether there will be an ex ante (like in the case of patents) or an ex post
examination, during which TK custodians will claim that part of their knowledge has been
misappropriated, and whether there will be a system to notify third parties which knowledge
is protected (e.g. a registration system). In addition, identifying knowledge by its traditional
character comes down to identifying the object for protection by its right-holding
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beneficiaries. This may lead to confusion between two different questions, i.e. the
requirements for protection and identification of the rights holder. The problem is further
complicated by the fact that the next article identifies beneficiaries of protection as TK
holders. As such, the definition appears to be somewhat circular: the object of protection is
defined by its beneficiaries and beneficiaries are identified by the object of protection and
none of them is defined independently.
Furthermore, beneficiaries are comprehensively but vaguely identified. Article 5,
“Beneficiaries of Protection” identifies beneficiaries as the holders of knowledge in
accordance with the relationship described under Article 4 on the eligibility of protection.
The relationship between peoples and knowledge is essential in identifying beneficiaries of
protection. However, further precision is needed to make the system of protection work. In
addition, as I mentioned in the previous paragraph, there is a problem of the circular
definition between the provision on the eligibility of protection and the provision on the
beneficiaries of protection.
Regarding the content of protection itself, WIPO-IGC documents mention a series of
contract, tort and property rights but these rights already exist and are badly defined.
Article 1 mentions the possibility of protecting TK through contract law. This has little value
as TK holders currently can and sometimes do negotiate access to their TK by means of
contract, usually in the broader context of a bioprospecting contract. In addition, there are
some serious difficulties in contracting over TK subject matter. The first difficulty in
contracting over TK subject matter arises from the characteristics of knowledge as an
economic good (public good). It is difficult to control access to knowledge in the absence of a
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property right. If TK holders do not have the legal right to prevent third parties from
accessing their subject matter, the ability to contract is little useful. Similarly, knowledge is
difficult to show to a potential buyer. A potential buyer may need to see the knowledge to
decide whether he wants to buy it. Once the knowledge is seen, however, there is no
incentive to buy it unless there is a property right. The second obstacle derives from a limit of
contracts. They only rule relations among contracting parties; they usually have no effect on
third parties. By contrast, property rights are opposable against the world. The third difficulty
is inherent in the nature of TK. For the most, TK can be regarded as tacit knowledge. Tacit
knowledge is difficult to transfer, value, identify and delineate which makes it very difficult
to contract. (Cf. section 1.3).
Article 1 also envisages the use of tort law to protect TK. For the purposes of illustration this
Article enumerates a long list of torts that could be invoked by TK holders. The most notable
are unjust enrichment, public order and morality, and unfair competition. Once again, these
mechanisms for protection are currently legally available. In addition, protection by tort law
depends on there being an unauthorized use of knowledge that causes actual damage. The TK
holder will only receive protection (i.e. a remedy) if the use of the knowledge resulted in an
identifiable damage. Moreover, those torts are outlined in a vague manner and as such it is
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difficult to foresee the level of protection intended before going to court and obtaining a
decision. The tort of unfair competition may be a bit more precisely drafted than the others,
but it is only relevant in a limited number of circumstances. In general, unfair competition is
a tort providing a remedy for the loss of market share or commercial reputation in the sale of
knowledge goods. There are, however, variations in national understandings of unfair
competition law. TK holders may acquire goodwill as producers of medicinal preparations,
cosmetic products, or cultural products and they may suffer harm to their commercial
reputation or market share by unauthorized uses of their TK. However, this hypothesis only
concerns a limited proportion of TK and may apply more to cultural products such as craft or
folklore (Lucas-Schloetter, 2004). Therefore, it seems unlikely that unfair competition law
can provide strong protection to TK holders. In addition, in the circumstances in which TK
could be protected by unfair competition, it might be more interesting for TK holders to
consider the protection offered by trademark and geographical indication.
Article 1 also contains an allusion to a property right by recalling the principle according to
which TK cannot be accessed by third parties without the prior informed consent of its
holders. However, there is no more precision on this property right.
In total, I am afraid misappropriation as currently described in WIPO-IGC documents only
contains badly defined rights likely to result in high transaction costs.
1.1.2 Limits of Misappropriation: Rights Poorly Defined and High Transaction Costs.
From the standpoint of a TK holder, misappropriation offers comprehensive, affordable and
easily accessible protection because there is no condition for its use. Unfortunately, it will be
hard to enforce such a vague right over such a vaguely defined object. It will be difficult to
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monitor all possible violations as they are likely to occur simply because third parties do not
know what is protected and the identity of the right holder. Similarly, TK holders wanting to
enforce their rights will have to go to court in the country where TK is accessed. It will be
difficult and expensive for TK holders to provide evidence of their rights and of their
violation. Therefore, the protection offered by misappropriation seems rather costly and
inefficient; indeed it might often not be economically worthwhile enforcing a right under this
claim.
From a potential user’s point of view, there is the risk of very high transaction costs. It may
prove difficult to identify the TK rights holder who has the authorization to give access to the
TK in question. As it stands, the rights of TK holders are uncertain and badly delineated. In
other words, potential user will face legal uncertainty that will act as a disincentive to use TK.
In sum, misappropriation as described in WIPO-IGC documents neither prevents the
unauthorized use of TK, nor encourages its use when it is the desire and goal of TK holders
and users.
1.1.3 Limits of Rights-Based Justifications
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One explanation for the difficulty in designing clear rights to TK may come from the
justification of those rights. The concept of misappropriation does not only include the notion
that TK holders should have a right to be protected against acts which violate the principles
of equity and fairness, but it also contains, more or less explicitly, a justification for a
protection regime for TK. Indeed, the concept of misappropriation echoes academic and
NGO literature that justifies the need for a protection regime on the basis of natural, moral or
human rights (hereinafter “rights-based justifications”).
Rights-based justifications for intellectual property are loosely derived from the labour theory
originating in the writings of John Locke, or the personality theory inspired by the works of
Kant and Hegel. According to the labour theory, a person who labours upon resources that
are “held in common” has a natural property right to the fruits of his or her efforts – and the
state has a duty to respect and enforce that natural right. As facts and concepts, the raw
material of intellectual property, seem to be held in common, the labour theory is widely
thought to be especially applicable to the field of intellectual property (Fisher, 2001). As for
the personality theory, it suggests that private property rights are crucial to the satisfaction of
some fundamental human need. They should be created in the fashion that best enables
people to fulfil those needs. In that perspective, intellectual property rights are justified as a
protection against appropriation or modification of artefacts regarded as a vessel for the
personality of authors, artists and inventors (Fisher, 2001) or in the case of TK, the vessel for
the cultural heritage of communities.
Similar arguments are also phrased in terms of human rights, notably with a reference to
article 27.2 of the Universal Declaration of Human Rights, which provides that “everyone has
the right to the protection of the moral and material interests resulting from any scientific,
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literary or artistic production of which he is the author”. Arguments based on human rights,
the labour theory or the personality theory are often mixed, that is why they are some times
collectively referred as rights-based theories as opposed to utilitarian justifications.
The numerous advocates of rights-based justifications observe that there seems to be a
growing consensus that there is something wrong with the use and appropriation of TK
without prior permission and compensation of TK. The strength of such justifications can be
observed in the fact that TK protection is now discussed in many international forums, and
the World Intellectual Property Organization (WIPO) is considering the negotiation of an
international agreement. However, if rights-based justifications play an important role in
convincing people of the need of a protection regime, they do not lend themselves so easily to
designing the precise content of such a regime. These moral justifications do not take into
account the conditions of use of knowledge and the effect of the protection regime on the
production and diffusion of knowledge Therefore right-based justifications are of limited help
to create effective, customized and transferable property rights. They do not provide criteria
precise enough to identify the object of protection, the form, the scope of protection, or the
beneficiaries of the rights (Gehl Sampath, 2004).
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The limits of misappropriation as a protection mechanism and as a justification for such
mechanism suggest that there is a need to complement article 8J of the CBD and
misappropriation with rights that are better defined and easier to trade. From that perspective
it might be worthwhile to complement the rights-based justification of TK protection with a
utilitarian justification. Utilitarian justifications are the dominant justification for intellectual
property except in the debate on TK protection where they are curiously absent (Cf. section
1.3). First, however, I would like to have a look at how TK holders currently attempt to
protect their knowledge.
1.2 How to Protect TK: The Lessons of Practice
In this essay, I cannot look at all attempts to protect all categories of TK. In the following
paragraphs, I look at one practical attempt to protect TK: the creation of databases or registers
as a mechanism of protection for ethnobotanical TK.
1.2.1 TK Databases and Defensive Protection
Documentation of TK and creation of databases had been done by academics for a long time
and by some TK holders since the mid 1980s (WIPO 2002a and WIPO 2002b). However, it is
the patenting by corporations of inventions derived from TK that started a larger movement
to document and create TK databases as instruments for defensive protection. TK holders
realized that third parties could obtain patents derived from their knowledge because TK was
not sufficiently taken into account by patent offices when assessing the novelty and non-
obviousness, or inventiveness requirements for obtaining a patent (Agarwal and Narain,
1996; Dutfield, 1999; Kocken and Roozendaal, 1997; Kadidal, 1997; Gari, 1997). In
practical terms, patent offices reviewing prior art had difficulties in accessing TK not widely
known and often orally transmitted. In addition, under US Patent law (not under European
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patent laws) prior art includes inventions patented or described in a printed publication in
either the United States or a foreign country, and inventions known or used by others in the
US. Unpublished or unpatented uses of TK in a foreign country are not taken into account
(Ibidem). As a result, documenting TK and compiling TK databases was a means to make the
information available to patent offices and to ensure its inclusion in the prior art so as to
prevent abusive patenting.
The best-known example is the Traditional Knowledge Digital Library (TKDL) (Alexander
et al, 2003) that was created in India as a reaction to the grant to two U.S. based Indians of a
U.S. Patent 5,401,504 on traditional use of Turmeric in wound healing. The patent created
much surprise and trouble in India and was finally revoked for obviousness and lack of
novelty. Following the Indian example, other TK databases have been created and placed in
the public domain for defensive protection, notably in China (WIPO, 2002a), in the United
States1, and in Peru2. More recently, the member-states of the South Asian Association for
Regional Cooperation have decided to set up a common TK digital library, notably for
defensive purpose (Business India, 2004). In addition to these databases created for defensive
protection, a larger movement of documentation of TK for positive protection is under
progress.
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1.2.2 TK Databases and Positive Protection
The rationales for documentation and creation of databases go beyond defensive protection.
Some communities resort to databases for their internal use: to preserve knowledge, to
facilitate the use of knowledge among the community of TK holders, as in the TK databases
of Inuit of Numavik, Canada (May and Brooke, 1997), and/or to foster traditional innovation
like the People’s Biodiversity registers (Gadgil, 2000), the Honey Bee Network (Gupta,
2001) or the Farmers Right Information System in India. Some communities also use
databases in their relations with third parties, either as an instrument for attracting potential
users, to negotiate compensation for access, or as evidence of the existence of some right to
knowledge.
Among the existing databases, some are public, some are confidential and some combine
different levels of access for different categories of uses and users. Some of these databases
have been created by law and created by governmental institutions but most of them are the
fruits of collaboration between NGOs and TK holders themselves (Merle et al., 2003).
1.2.3 Critics and Unresolved Issues
Unfortunately, this ongoing creation of TK databases has been slowed down by criticisms
and unresolved issues. A first set of criticisms focus on the notion of TK protection and the
public domain. It has been observed that there is a contradiction between defensive and
positive protection. Compiling TK in databases available to the public may protect the
knowledge from monopolistic commercial exploitation but it does not prevent unauthorized
uses of TK (Hardison, 2003). Rather, it places TK in the public domain and amounts to a
renunciation of rights over such knowledge (Tobin, 2004). In other words, defensive
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protection is incompatible with positive protection. A related criticism points out the absence
of clear rights on TK databases and the elements of knowledge it contains (Tobin, 2004).
A second set of criticisms argue that placing TK in databases changes the nature of the
knowledge, freezes it and interrupts the process of traditional innovation (Dutfield, 1999).
A third set of criticisms focus on the relation between TK holders and the database. A
database does not provide a right over the knowledge, as such, to the benefit of TK holders.
Furthermore, in cases where TK holders do not themselves compile the TK database, the
articulation of rights between the TK holders, who have rights in the TK data, and the
database compilers, who have rights in the database containing the TK data, is unclear (Merle
et al., 2003). In the same spirit, some databases have been blamed for not taking into account
customary law and local context of innovation.
1.3 Why Protect TK: Utilitarianism as a Complementary Justification3
After explaining how TK holders attempt to protect their knowledge, and before coming back
to the criticisms and unresolved issues, it is worth discussing the justification for TK
protection. In this section, I explain how a utilitarian approach is useful to justify TK
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protection and design a protection mechanism. Looking at the grant of property rights from a
utilitarian perspective is to regard property rights as an instrument to obtain the greatest good
for the greatest number. In order to translate this ideal, most scholars use wealth
maximization as the criterion and economics as a methodology to assess the effect of rights.
To consider a regime of protection for TK from a utilitarian perspective, one must look at the
consequences of the creation and attribution of property rights in terms of the increase of
utility. When used to explain how intellectual property laws or other forms of knowledge
control and exchange function, utilitarianism looks at the nature of knowledge and its
usefulness as the key criteria to identify the object of protection and the beneficiaries. Rights
are regarded as an incentive to produce and/or disseminate the desired knowledge. Therefore,
a possible contribution of a utilitarian approach might be to identify different types of
knowledge, their respective usefulness, and the effect that different protection mechanisms
could have on the provision and/ or dissemination of different types of knowledge.4 Because
it takes into account these elements, a utilitarian or goal-based approach is more helpful to
create effective, customized and transferable property rights and to provide criteria precise
enough to identify the object of protection, the form, the scope of protection and the
beneficiaries.
An additional advantage of a utilitarian justification of intellectual property lies in the
possible benefit from the lessons of knowledge economics. Knowledge economics focuses on
the conditions and the costs of knowledge production and dissemination. It plays an
important part in the justification of intellectual property law whose main rationale –in a
utilitarian perspective – consists in creating the best conditions for the production and the use
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of knowledge within society to further its progress. Some recent evolutions in knowledge
economics might be particularly relevant to design accurate protection mechanisms for TK.
In this article, I cannot identify the useful characteristics of all categories of TK. I focus on
the useful characteristics of ethnobotanical knowledge, which can be used for R&D in
various bio-industries. It is likely that part of the analysis could be relevant for other elements
of TK such as traditional environmental knowledge. In the following, the expression TK
actually designates ethnobotanical knowledge. According to the proposed approach in the
following paragraphs, I look at (1) the usefulness of ethnobotanical knowledge, (2) its
characteristics, and (3) the incentive effects of intellectual property rights.
1.3.1 Contribution of Ethnobotanical Knowledge to Bio-Industries’ R&D
To understand the contribution of TK, one must first understand the input provided by
biodiversity in the R&D process in bio-industries. Bio-industries can be conceived as defence
efforts against a hostile biological world that are perpetually eroding and must be constantly
renewed. In agriculture, we perpetually renew a system that faces the always-evolving pests
and predators of our food crops. In medicine we similarly defend human beings against direct
aggressions. In both sectors, our defence effort is perpetually eroding and must be constantly
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renewed. Plants and other biological resources are essential ingredients in the defence of the
human domain because they contain relevant information. The same forces that are operating
against the human domain are also at work against other living organisms. Any life form that
survives has developed resistances that are successful in a contested environment (Swanson,
1996). It is for the retention of these existing strategies of resistance that bio-industries collect
plants or other biological resources and screen them to identify pharmacologically active
compounds5. It is in this collection of plant for screening that TK can provide a valuable
contribution. There are three strategies for collecting plants for screening programs: random,
taxonomic and ethnobotanical. Random collecting is an attempt to sample as much
taxonomic diversity as possible. The taxonomic approach is a more guided approach is to
select for screening species that belong to certain families or genuses that are likely to contain
certain classes of compounds. The ethnobotanical approach consists in selecting the plants to
be collected on the basis of their uses in traditional medicine. Once the plants have been
selected and collected according to ethnobotanical knowledge, they can be randomly
screened. In that case, the contribution of ethnobotanical knowledge consists of increasing the
probability to identify active compounds. Ethnobotanical knowledge can provide an
additional contribution when scientists look at the uses of plants in traditional medicines and
test their effectiveness (Miller, 1992). Finally traditional modes of preparation can provide
further clues to active chemical compounds (Elisabethsky, 1991).
The contribution of ethnobotanical knowledge to drug R&D is very often mentioned and
illustrated by examples but there actually exist few serious estimations of its value. However,
some studies comparing the random collection and ethnobotanical collection approaches
observe a four-fold increase in the probability of drug discovery (Balick, 1990). Otherwise,
many pharmacological or chemical studies report the use of TK without estimating their
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value (Lieting and van den Berghe, 1998). The value of TK is also attested to by the
existence of a series of related disciplines and journals dedicated to its documentation:
ethnobotany, ethnobiology, ethnopharmacology, ethnoecology, economic botany, and so
forth. Finally, it has been observed that seventy-four percent of chemical compounds used in
drugs today have the same or related use in western medicine as they do in traditional
medical systems (Farnsworth, 1988). It is therefore reasonable to state that TK has and will
continue to play a valuable role in drug R&D either in terms of identification of plants for
screening or as clues of their pharmaceutical activity (Elisabethsky, 1991).
Furthermore, large chemical and pharmaceutical companies are used to resorting to all sorts
of collaborations with a large range of “knowledge providers”. Indeed, given the large array
of discoveries in molecular biology, genetics and related fields, biotechnology has become
such a diverse industry, in terms of its underlying science and discoveries that not even the
largest pharmaceutical companies have the internal capacities to cover all the areas (Powel,
2001 and Saviotti, 1998). In this context, it seems that TK holders willing to do so could
work as “knowledge providers” for those large chemical or pharmaceutical companies.
1.3.2 The Tacit Dimension of Traditional Knowledge
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Once one has identified the nature of the actual or potential contribution of TK to drug or
other bio-industries R&D, one has to look closer at the characteristics of this type of
knowledge. TK includes identification of plants, identification of their use and possible
recipes for their use.
Part of TK fits into the definition of tacit knowledge or can be assimilated to tacit knowledge.
Tacit knowledge refers to particular know-how or undeveloped ideas that are best
communicated through personal communication between people. Often the holder is only
partly aware that he owns tacit knowledge. Well-known examples of tacit knowledge include
a famous rugby player that knows how to score a try but is only partly aware of what he does
and unable to describe it in such a way that someone reading his description could easily
reproduce his gestures (Mangolte 1997). Actually, the same is true for much knowledge
involved in the innovation process, especially in the field of biotechnology. Tacit knowledge
is the opposite of codified knowledge. Codification of knowledge is the process by which
knowledge is converted into a message that can be processed as information. Codification
locates knowledge on a support that liberates knowledge from its reattachment to the person
who had incorporated tacit knowledge. Codified knowledge is therefore more similar to a
commodity (Foray, 2000). The tacitness of knowledge hinders a series of operations. The
exchange, the diffusion, and the learning of tacit knowledge require the displacement and the
voluntary demonstration of knowledge holders. These operations are therefore costly and
difficult to implement. The storage and the memorization of tacit knowledge are conditioned
by the permanent renewal of peoples holding this knowledge. Finally, tacitness of knowledge
slows down the cumulativeness of innovation. The identification of complementary pieces of
knowledge and their holders is limited by tacitness and this impedes systematic identification
and classification (Foray, 2000).
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More broadly, an important part of TK can be assimilated to tacit knowledge in the sense that
there are serious hindrances to its transmission outside the community of knowledge holders.
Most of TK is orally transmitted. It is often unsystematically conserved or conserved with a
classification that does not correspond to ones used in Western science. It is sometimes
mixed with magic formula –often used as a smoke screen meant to control the diffusion of
knowledge. Finally, yet importantly, it is often expressed in languages with a limited number
of speakers. Therefore, it is reasonable to assimilate to tacit knowledge the actual or potential
contribution of TK to bio-industries R&D. The tacitness of TK is probably one of the major
obstacles to its further use in R&D. Both the importance of ethnobotanical knowledge and the
problem of tacitness are well illustrated by the largest study on the commercial use of
biodiversity. Kerry Ten Kate and Sarah Laird observe that close to half of the companies they
interviewed make use of TK. However, they immediately add that 80 percent of all
companies that use ethnobotanical knowledge rely solely on academic literature and
databases as their primary source for this information (Ten Kate and Laid, 1999).
This has three implications. First, TK is rarely accessed as tacit knowledge through field
collection. Second, the knowledge used by bio-industry is the part of TK that has been
23
codified or translated in academic journals or databases. Third, at present most of this
codification or translation of TK is carried out by academics with little involvement of TK
holders.
1.3.3 An Incentive to Codify
Once one has identified the possible contribution of TK to the R&D process in the bio-
industries, the next step is to identify property rights that will have an appropriate incentive
effect on the production and/or the dissemination of TK. If one considers the theoretical
evolution of knowledge economics, it appears that there is not so much a need to restrict
access – as for most of TK, its tacit dimension already limits access. There is rather a strong
need for an incentive to reveal knowledge and to provide mechanisms that favor trade of
knowledge.
Under the classical economic understanding of innovation developed by Arrow (Arrow,
1962) and Nelson (Nelson, 1959), it is not clear that there is a justification to protect TK
through exclusive property rights. I briefly recall Arrow and Nelson’s few central points.
First, from a firm standpoint, undertaking R&D activities is regarded as an investment
decision. Second, R&D can be conceived of as an activity intended to produce information or
knowledge. Third, knowledge is a public good, i.e. a non-excludable and non-rival good. As a
non-excludable good, knowledge is likely to be underprovided, from society’s perspective,
because the social return for investment in R&D exceeds private return. By providing a legal
mechanism to exclude third parties from knowledge use, IPRs enable knowledge producers to
capture a greater part of the benefits of their investment in knowledge production, therefore
acting as incentive for the production of knowledge. However, knowledge is also a non-rival
good, which means that it should be freely available. There is thus a dilemma or a tradeoff
24
between investment and access or, in other words, between dynamic efficiency and static
efficiency.
Under such an understanding of knowledge production and dissemination, is there an
economic reason to protect such knowledge and by what kind of protection mechanism? TK
could itself be regarded as R&D because it consists of knowledge that has resulted from a
long process of innovation by TK holders; some people want to acquire it and TK holders
want to protect it, it is therefore valuable knowledge. Valuable knowledge is a public good, as
such, there seems to be reasons to protect TK by IPRs mechanisms. On the contrary, TK
already exists, so there is no need to create IPR incentives to produce it; it has been created
without such incentives. Moreover, TK is also a non-rival good, which suggests that it should
be open-access. In economic terms, there appears to be no gain in dynamic efficiency that
justifies losses from static inefficiency, such as the under-utilization of knowledge induced by
IPRs. Therefore, there is no apparent economic or utilitarian argument to protect TK. That is
probably why most proponents of TK protection reject utilitarian justifications.
As suggested by Padmashree Gehl Sampath, one cannot stop the analysis at this point.
Indeed, both the increasing cumulative and collective dimension of innovation, (Merges &
25
Nelson, 1990; Reichman, 2000) especially in biotechnologies and the increased awareness of
the role of tacit knowledge, have led to some changes in the economic theorization of
innovation and/or knowledge production that are relevant in our examination of the
justification of TK protection (Gelh Sampath, 2004). First, the collective and cumulative
dimension of innovation implies that access to previous inventions and pre-existing
knowledge become important incentives to innovate whereas transferring and exploiting pre-
existing knowledge is difficult and costly. Second, it is important to realize that describing
knowledge as a public good only applies to codified knowledge.
Indeed, tacit knowledge does not qualify as a perfectly non-exclusive good. When knowledge
is expressed under the form of perfectly codified instructions that enable an easy reproduction
of knowledge, it is uncontrollable or non-excludable – except obviously when it is codified
with a secret code. Actually, knowledge is often a mix of codified instructions and tacit
knowledge based on practical experiences that can only be acquired in the specific laboratory
where the research has been undertaken. The tacit dimension of knowledge gives some
control to its owner because it can only be transmitted by voluntary demonstration and
apprenticeship. Therefore, tacit knowledge has some excludability (Foray, 2000). As most
TK consists of tacit knowledge, or can be assimilated to tacit knowledge, it might be said that
it is partly excludable and can only be accessed by a voluntary demonstration of knowledge
holders. When TK has been codified in academic databases or journals, TK holders have
already willingly demonstrated it. However, they may have been unaware of the
consequences of this revelation.
Several costs of knowledge also limit the benefit of non-rivalry. The effect of non-rivalry, i.e.
the capacity of knowledge to be used an infinite number of times by an infinite number of
26
persons, can be seriously limited by three categories of costs: the cost of codifying,
transmitting, and acquiring knowledge. This implies that the tacitness of knowledge reduces
the benefits of its non-rivalry. The cost of transmission includes the cost of transferring
knowledge including the cost of the medium (Foray, 2000). The costs of acquisition refer to
the costs of training a large audience able to understand and use the knowledge. Without
those investments, the value of non-rivalry is limited or void (Callon, 1994) One can
therefore distinguish specific non-rival goods like esoteric or very up-to-date knowledge from
quasi-universal non-rival goods like the law of gravitation. The presence of those costs
implies that TK cannot be used as widely as its potential. In economic terms, one would say
that TK is not available for diffusion at marginal costs (Gelh Samptath, 2004). However, two
categories of costs have been reduced. The development of the information and
communication technologies, notably in TK-rich countries like India and China, lowers the
cost of transmission. Similarly, the development of scientific disciplines like ethnobotany,
ethnopharmacology, or economic botany creates a new audience able to understand TK.
Therefore, the costs of codifying appear to be the main limit to the benefits of non-rivalry.
Therefore, I believe an important part of TK consists of tacit knowledge that does not
correspond to the notion of public good. There is not a need to restrict access in order to
27
provide an incentive to invest in the production of TK. Rather, there is a need for an incentive
to codify TK so as to increase its transferability and use.
In addition, it is important to understand the relationship between codification and intellectual
property. Codification is a condition for the granting of an intellectual property right. A
property right can only be granted on well-identified and described pieces of knowledge.
Codification also provides an argument for the granting of IPRs. Indeed, codification is a
public good, or in other words, knowledge becomes a public good when it is codified, as such
there might be a need for protection and incentives.
In conclusion, the lesson of this utilitarian approach is twofold. From the perspective of
lawmakers willing to promote the conservation, use, and creation of TK, there seems to be a
strong argument for incentives to codify TK. The lesson of this utilitarian approach is not an
argument against the creation of property rights in TK, as it is called by article 8J of the
CBD, as it is enacted in some national legislations and as it is discussed in WIPO-IGC. The
lesson is that even if this property right exists, the transferability and the use of
ethnobotanical knowledge, at least outside of the community, will remain very limited in the
absence of codification. This assertion is confirmed by the figures mentioned above: eighty
percent of firms using ethnobotanical knowledge use codifications of TK done by academics.
From TK holders’ standpoint, an important choice must be made. If their priority is to keep
control of their ethnobotanical knowledge in the absence of a clear possibility to obtain
intellectual property protection, the best option consists probably in keeping their knowledge
tacit. If they want to open access to their knowledge and obtain compensation for its use, they
should consider codifying their knowledge and search for relevant intellectual property
protection.
28
1.4 Theory and Practice: Codification and Databases
The analysis of the justification for TK protection from a utilitarian perspective supports
those TK holders that have launched into creating databases. Indeed, the material result of TK
codification might be academic journal articles or databases. As the publication in academic
journals implies a total loss of control on published knowledge, databases appear to be the
best way to codify TK. It is not sufficient to give theoretical support to the creation of TK
databases; first one must examine whether there is a property right on databases that works as
an incentive to codify or whether it is necessary to envisage the creation of new IPRs and
then return to the criticisms of TK databases.
1.4.1 IPRs and Databases
Is there a right available or is it necessary to envisage the creation of a new IPR? Countries
interested in fostering codification of TK in their territory could enact national legislation on
the condition of access to TK databases. National laws may not be the answer because they
only extend as far as national borders. One of the benefits of digital databases is their ability
to increase the international transferability of knowledge. Therefore, the creation of a new
IPR may be more effective at the international level so that it may have an effect on the use
29
of TK outside of national borders. It is not the purpose of this essay, however, to give a
detailed analysis on the international protection of databases.
In brief, in most countries databases can be protected under copyright and/or through
technological measures. In the EU, databases may additionally qualify for protections under
the sui generis database right.
With regards to copyright, the conditions and scope of protection vary among states.
Regarding the conditions of protection, under the “intellectual creation” approach to the
originality standard that is taken by most civil law jurisdictions and some common law
countries, most notably the U.S., the author of a database must demonstrate a limited
modicum of creativity in the selection and arrangement of data while under the “sweat of the
brow” approach, he must demonstrate investment in time and/or money in the compilation of
the database (Davison, 2003). Despite the differences in the conditions of protection, there is
little doubt that a TK database would qualify for copyright protection in most countries. As
for the scope of protection, in countries resorting to the “intellectual creation” doctrine, it is
very limited: it is the copy of the selection and/or arrangement of data that constitutes
infringement, not the copy of data. In countries following the “sweat of the brow” doctrine,
the scope of protection is broader but still limited: the copy of a substantial proportion of the
data infringes the copyright but not the copy of small amounts of data (Davison, 2003).
It is also possible to protect databases through a sui generis right database first enacted in the
European Union and soon to be in force in close to fifty states. The makers of a TK database
should have no difficulty in qualifying for protection. The means of qualifying for protection
are similar to copyright under the “sweat of the brow” approach, in that in order to qualify for
30
the right the maker of the database must make a substantial investment in obtaining,
verifying, or presenting the contents of the database. The scope of protection is slightly
different; if a database qualifies for the sui generis right, database maker may prevent the
unauthorized extraction and/or re-utilization of substantial parts of the database, and the
repeated and systematic extraction/or re-utilization of insubstantial parts of the database’s
contents. The sui generis database right therefore provides stronger protection than copyright.
However, it is only in vigour in a limited number of countries and protection is only available
for nationals or residents of these countries.6 It is beyond the scope of this article to discuss
whether countries rich in TK should consider enacting similar legislation, as the protection of
databases is a much broader issue than TK databases.
Last, it is possible to protect online databases by conditional access systems that serve to
control access to an information service (Hugenholtz, 2000). Here, I must introduce a
theoretical distinction. The notion of property rights is slightly different for lawyers and
economists. Property rights in the economic sense include not only legal property rights but
also other forms of control that produce the same effects of creating some degree of
exclusiveness and transferability (Barzel,1997).
31
While copyright and the sui generis right provide control over copying parts of a database,
conditional access systems provide complete control over access to a database. Under
conditional access systems a database owner can condition access to a database through
contractual licensing terms, which fix the conditions and payment for use. Therefore, for on-
line databases, conditional access systems offer convenient protection for TK holders.
However, it might be worth combining the three different types of protection because once
access has been given to a user, copyright, or the sui generis right provide stronger protection
against third parties. One must recall the distinction between contract and legal property
rights. For the most, contracts only bind the contracting parties; they cannot be opposed to
third parties. By contrast, legal property right can be opposed to anyone. To illustrate,
imagine A has some TK and makes it available to B under certain conditions including an
obligation not to communicate the knowledge to third parties. In violation of the contractual
terms B makes the knowledge available to C. If A protects his database with a conditional
access measures, he can sue B for breach of contract but he has no direct action against C. By
contrast, if A has a legal property right, he can sue B for breach of contract and C for
infringement of its property right. For this reason, TK holders might combine technological
measures and IPRs.
In sum, there already exist some forms of international protection for databases that can
incentivise the codification of TK. Some additional forms of protection may appear in the
future as a result of the discussions within WIPO on database protection that have been
interrupted by the lack of consensus within the United States on the best form of protection.
1.4.2 Replies to Database Critics
32
Sceptics argue that the use of databases for defensive protection is incompatible with positive
protection because it would effectively place TK in the public domain. This assertion
confuses notions of patent law and copyright law and deserves to be qualified. It is true that
an invention described in a text or a database can no longer be patented, as it would lack
novelty. In that sense, it can be said that it is placed in the public domain. However, the
description itself can still be protected by copyright, the sui generis database right, or above
all technological measures. Therefore, TK described in databases can be taken into account as
prior art by patent offices even if access to the database is not freely accessible. As an
illustration, let us compare with a scientist who makes a discovery and describes it in an
online academic journal. This discovery can no longer be patented as it would lack novelty.
However, the article is protected by copyright and access to the journal can be limited by
technological measures, i.e. only subscribers may access. In practice, people accept to pay
high subscription fee to access description of valuable scientific information. There is now
reason why peoples interested in accessing valuable TK would not accept to pay a fee to
access a TK database. In addition, access to the database could e conditioned not only to the
payment of a fee but also to an obligation not to share the knowledge with third parties.
Lastly, the European Patent Office (EPO) and the maker of the Traditional Knowledge
Digital Library (TKDL) recently concluded an agreement according to which the EPO will
33
have access to the TKDL while it will remain inaccessible to third parties (European Patent
Office, 2005). This agreement is practically very helpful but it should not give the impression
that similar agreements are a legal necessity to combine defensive and positive protection.
Similarly, some TK holders complain about the notion of the public domain. Either they
claim that the notion of public domain does not exist in their customary law or they complain
that their knowledge has been placed in the public domain by third parties without their prior
consent (Tulalipe Tribe, 2003) and they want protections for their knowledge that is in the
public domain. In that latter case, databases enable some control over the use of knowledge in
the public domain. A database made up of pieces of knowledge in the public domain (either
because they are unprotected, no longer protected or unprotectable) can be protected by
intellectual property or by technological measures. Obviously, the person interested in
accessing that knowledge can find another source but he might prefer using the database that
offers a large collection of knowledge and a classification system. Facilitating access to
knowledge is the very raison d’être of databases. In that case, the users might be ready to
accept the conditions of access settled by the database maker.
Critics of databases also argue that codifying TK and placing into databases could be
dangerous for traditional innovation because it would fix knowledge in its current state and
interrupt the innovation process. This criticism may be legitimate but it is badly formulated.
Modern science mixes tacit and codified knowledge. Codification of new discoveries is an
important task and it cannot be argued that codification freezes the innovation. To the
contrary, some degree of codification is necessary to share knowledge and further innovate.
34
This criticism highlights the question of the mode of devolution of TK. Indigenous and local
communities holding TK face the same options as any organization managing knowledge.
The first strategy consists in codifying knowledge systematically so that it can be stocked in
databases. In that case, it can be easily accessed and used by members of the organization.
Alternatively, they can adopt a strategy of personalization in which knowledge is kept tacit. It
remains very bound to the person who developed it, and it is transmitted by personal contacts
among members in the organization. Dialogue among individuals is preferred to storage of
knowledge into databases. This strategy entails important investment in the development of
interpersonal networks and a culture of mobility and personal communication within the
organization. For that reason, a high degree of stability in the membership of the organization
and a process of training from one generation to another are essential (Foray, 2000).
It is reasonable to affirm that thus far indigenous and local communities holding TK have
relied for the most on a strategy of personalization to ensure the devolution of their
knowledge. The very problem is that for many communities this strategy of devolution is in a
deep crisis. Without going too deep in to this issue, it can be observed that even the existence
of language is threatened. Nettle and Romaine point out that of the 6600 languages spoken
today, fewer than nine percent, or 600 have enough speakers to ensure their continuity into
35
the next century. This loss of language includes ninety percent of the 250 Aboriginal
languages in Australia near extinction with only eighteen having at least 500 speakers each.
They also note that no children are learning any of the 100 native languages spoken in the
state of California (Nettle and Romaine, 2000). Also, the devolution of TK from one
generation to the next is less and less effective. As modernization spreads over the world,
young peoples seem unable to recognize value in traditional ways and they do not perceive
any potential economic return from engaging in traditional activities. As an illustration, Lee
et al. report that “traditional leaders in Micronesia were concerned that […] over the last two
generations a large percentage of traditions and skills specific to Micronesia have not been
passed on, and will become extinct if an active program is not put into place to keep them an
active part of local life” (Lee et al., 2001). Therefore indigenous and local communities could
consider replacing or complementing their strategy of personalization by a strategy of
codification.
What is true is that if we want to maintain the traditional innovation process, codification
must be carried out by or with TK holders and their organization of innovation must be taken
into account. This will be the subject matter of the second part of this essay.
Furthermore, critics of databases rightly point out that there exists a problem of articulation
between TK holders and the makers of a TK database when TK holders themselves do no
make the database.
What TK holders claim is a right to TK as such, not a right to a database. Similarly, article 8J
of the Convention on Biological Diversity, as well as some national laws, and discussions on
misappropriation in WIPO recognize or consider the possibility of a right to TK as such. By
36
contrast, a utilitarian approach suggests that codification might be a practical means for
effective protection of ethnobotanical knowledge and that we should consider the possible
incentives. In the current state of the law, there exist some property rights to databases that
could work as an incentive to codify ethnobotanical knowledge. Those property rights are
granted to the codifier, i.e. the person that makes the database. Therefore, they encourage TK
holders to codify their knowledge. However, if the codification, or creation of the database, is
not carried out by TK holders themselves, the respective rights of TK holders and the
database maker must be respected. This not a problem specific to ethnobotanical knowledge –
it is present each time the maker of a database wants to integrate protected material in its
database. The database maker and knowledge holders will have to negotiate the conditions of
integration of that knowledge in the database and a formula to share the benefits. The
situation is more complex with TK because, in the current state of the law, the existence and
the outline of a right to TK remain unclear (Cf. section 1.1.2). However, TK holders can
make up for the weakness of their property right by the tacitness of their knowledge:
codification of their knowledge in a database is likely to require their voluntary contribution.
In addition, creating a TK database facilitates the enforcement of their rights to their
knowledge.
37
Whether TK holders or third parties carry out the creation of a TK database, it will have
organizational consequences. A TK database is most likely to include pieces of knowledge
belonging to several owners: several individuals, a community, or multiple communities.
The database maker may act as a collective rights organization, i.e. an organization managing
the rights of several rights holders. If a community of TK holders sets up the database, the
latter will manage the rights of the community and act as an intermediary between the
community internal regime, which grants property rights and rules governing knowledge
exchanges within the community, and the external regime, which settles the conditions upon
which the community agrees to give access to its knowledge to third parties. If a third party
sets up the database, it will act as an intermediary between the knowledge holders and the
potential users.
Therefore, we cannot limit our attention to a limited understanding of TK protection through
databases or any other device. We must also consider how these protection devices can
enable communities to articulate their internal regime, which organizes innovation within the
community, and an external regime, which organizes their relation to third parties. This is the
subject matter of the following pages.
2 …while taking into account custom-based innovation systems
The claims of TK holders are not limited to the protection of their knowledge but also include
the respect of their customary law or in other words the preservation of their cultural identity
and the organizational structure that enables the continuous production, use and conservation
of their knowledge. Very often, TK holders argue that they do not need intellectual property
rights but rather the recognition of their customary rights (Four Direction Council, 1996).
38
Usually the demand of recognition of customary law is perceived as deeply embedded in the
larger claim of indigenous people for self-determination. Article 8J of the CBD calls for the
protection of TK of local and indigenous communities. Even if there is no universally
accepted definition of the notion of “indigenous communities”, most people refers to the
“Cobo’ description” requiring three elements: 1) precedence on a territory, 2) non-
domination, and 3) an identity claim. “Indigenous communities, peoples and nations are those
which, having a historical continuity with pre-invasion and pre-colonial societies that
developed on their territories, consider themselves distinct from other sectors of the societies
now prevailing in those territories, or part of them. They form at present non-dominant
sectors of society and are determined to preserve, develop and transmit their ethnic identity,
as a basis of their continued existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems.” (U.N. Subcommission, 1983). By contrast, the
term “local community” is not strictly defined and is used to refer to communities in the rest
of the world, notably in Africa and in Asia that have traditional way of life and maintain TK
on biological resources.
The struggle of indigenous peoples for the recognition of their rights has a long and proper
history (Anaya, 1996). Their demands concern a larger range of issues than the protection of
39
TK. Roughly speaking, their demands can be summarized as a general struggle for self-
determination, i.e. accession to statehood or at least some form of larger autonomy. In this
context, indigenous peoples view the debate on biodiversity and TK as an opportunity to have
their voice heard. On the other side of the table, governments, which have cold feet vis-à-vis
demands of self-determination, regard any claim for the respect of customary law as a moral
or political issue where the debate on TK protection is only a “pretext” to bring the issue of
self-determination to the forefront. As a result, except the insertion of a principle of respect of
customary law in WIPO-IGC documents, little headway has been made on this issue.
To progress on this issue, it may be worth adopting a different perspective. Let us divert one
instant our attention from the tensions between indigenous communities and their host states
and recall that local communities with no demand for self-determination also claim that their
knowledge is ruled by customary law or social norms that should be respected by third
parties. Then, we could adopt a more utilitarian standpoint focused on the conditions of
“traditional innovation”. As a result, the protection of TK appears emblematic of a general
challenge for intellectual property law and scholarship: recognizing the importance of private
or informal intellectual property systems that facilitate innovation by virtue of shared norms
or customs. In an article entitled “From Medieval Guilds to Open Software: Informal Norms,
Appropriability Institutions, and Innovation” (Merges, 2004), Professor Merges observes the
historical permanence of appropriability structures or informal institutions that facilitate
innovation by virtue of shared norms. These appropriability institutions are bottom-up
institutions in the sense that they are norm-based groups that develop their own internal
governance structure. They rely on group norms as opposed to formal legal enactments for
the creation and enforcement of some form of IPRs. According to Professor Merges, these
appropriability institutions require at least two things: (1) some way to differentiate insiders
40
or members from outsiders and (2) some shared norms determining what knowledge must be
shared by all members and what knowledge can be individually appropriated. After
examining a series of these appropriability institutions, including medieval guilds, collective
innovation in the 19th century steel industry (Allen, 1983), patent pools (Merges, 2000),
exchange of research results by academic scientists (Merges, 1996b), standard settings
organizations, a fashion guild in the 1930s, contemporary entertainment industry (Merges,
1996a), and open-source software. Professor Merges observes that “Many scholars – and
particularly legal scholars– have tended to have a state-centric, if not legal-centric, view of
appropriability. This “top-down” view must give way to a different conception: one where
bottom-up institutions of all kinds contribute importantly to appropriability conditions. This
view is in keeping with the recent trend in law and economics scholarship toward a
discussion of social norms in conjunction with formal law.”
In that perspective, I suggest that local and indigenous communities holding TK can be
analyzed as appropriability institutions that facilitate innovation by virtue of customary
intellectual property law. Next, I argue that the question we have to deal with is the
strengthening of these institutions, which are affected by outsider’s interest in TK. Then, I
41
examine some proposals that have been made to take into account customary law and observe
that they do not answer the right question. Finally, I suggest one possible element of solution.
2.1 Recognition of the Existence of Customary Intellectual Property Law
Debates about international protection of intellectual property and more precisely protection
of TK often erroneously assume that intellectual property regulation does not exist within
indigenous and local communities (Gana, 1995). One important lesson from the ongoing
discussions on the protection of TK is to force us to revise the often-made assumption that
there is no creativity among indigenous and local communities and more broadly in the third
world. The second lesson consists in recognizing that there exists some intellectual property
protection in these communities (Gana, 1995). TK holders repeatedly claim that they do not
want classical intellectual property law but rather recognition of their customary intellectual
property law.
There is plenty of evidence in the anthropological literature and property rights scholarship
that local and indigenous communities have developed community based system of property
rights on land regulated by community norms or customs (CIEL, 2002). As for intellectual
property, Cleveland and Murray (1997) observe that there is unfortunately no comprehensive
study available. However, they add that ethnographic examples make it clear that local and
indigenous communities have notions of intellectual property and that these rights might exist
at the individual level and/or group level based on residence, kinship, gender, or ethnicity.
Their assertion is confirmed by several reviews of the anthropological literature (Griffiths,
1993) and the results of the Facts-Finding Missions of WIPO (WIPO, 2001) that identify
several forms of intellectual property reminiscent of copyright, trademark or patent.
42
In addition, these customary intellectual property laws include the two elements Professor
Merges identifies as constitutive of appropriability institutions. First, customary intellectual
property laws differentiate insiders (members) from outsiders. Second, customary laws or
norms determine what knowledge all members must share and what knowledge may be
individually appropriated. As an illustration Matthias Leistner observes that “the flexible
combination of individual and collective elements in the development of TK leads to various
model of ownership depending on the predominance of either collective or individual
contributions. Thus, the owning collective is not necessarily the whole local community but
may also be a moiety, a clan, a phatry, a lineage, a society (or sodality) or a single household.
And even individuals –for example shamans and/or healers in certain Indian Tribes – can
distinguish themselves in some case as separate creators or inventors” (Leistner, 2004).
In conclusion, it clearly appears that local and indigenous communities holding TK can be
regarded as appropriability institutions that facilitate innovation by virtue of customary
intellectual property law.
2.2 The Real Issue
43
It is essential to keep in mind that we do not have to deal with the protection of TK inside the
community. Customary law governs protection inside the community. There is no need to
accommodate intellectual property for that task (Okediji, 2002). Rather the question is how
custom-based innovation systems can be articulated with the existing framework of global
intellectual property law.
This can be divided into two sub-issues. The first and most obvious one is the need to enable
TK holders to obtain protection for their knowledge vis-à-vis third parties, in other words to
enforce customary law against third parties. Indeed, non-members of the community have no
incentive to respect the customs in the interest of the community because community leaders
have no jurisdiction they cannot impose on outsiders customary sanctions ranging from
censure to fines, to ostracism or even expulsion from the community (Kuruk, 1999). Second,
it is also necessary to protect a community’s capacity to organize innovation against internal
threat. Indeed, the effectiveness of customary law within communities might be threatened
(Kuruk, 1999). The CBD regime requiring exclusive rights may create incentives that run
counter to customary law. Outsiders’ interest in accessing TK and the possibility of selling
access or even obtaining IPRs changes the incentive structure that makes individuals comply
with customary law. Even if a member of a community strongly believes that he should
respect customary law, and that only the community authorities are entitled to grant access to
TK, the payoff to breach customary law and negotiate personal compensation for divulgating
TK might be high enough to make one hesitate. In addition, if one concludes that other
members of the community could also be tempted to breach customary law, he may be
further induced to breach customary law to be sure he secures the benefits. The same
reasoning could be applied for small communities belonging to a larger community, or group
of communities, sharing the same knowledge and the same customary law. Examples of
44
conflicts between these communities have been observed in some bioprospecting contracts
(Tobin, 2005 and Worrle, 2005).
Therefore, we need to find a mechanism enabling TK holders to obtain protection for their
knowledge against third parties in a way that helps them to strengthen internal compliance
with customary law.
2.3 Proposed Solutions and Their Limits
Two possible ways to translate the interests of TK holders into the framework of global
intellectual property law are usually envisaged. A first proposal consists of the creation of an
international sui generis right inspired by the provisions of customary law. A related
proposition maintains that existing customary law would provide sufficient protection, if only
courts recognized it. However, both proposals seem to be highly problematic.
It is difficult to comment on the proposal to create a sui generis right based on customary law
because there is no detailed proposal describing what such a right could be. However, this
proposal faces practical problems, and above all it does not answer the right question. In
practical terms, I have already mentioned above the difficulty faced by WIPO in its attempt to
45
build a sui generis regime around the notion of misappropriation. Moreover, the history of
intellectual property law reveals a proliferation of sui generis regimes, which rarely provide
full satisfaction (Reichman, 1994). Then, it implies that customary intellectual property laws
have similar provisions, which is far from certain. More importantly, this proposal will not
answer issue regarding the articulation of a diversity of customary regimes within a single
global legal regime. Any attempt to design a sui generis right with a detailed international
standard (one size fits all) inspired by one of the customary regimes will have the same
rigidity as existing IPRs and will not be able to accommodate the diversity of customary
laws. On the contrary, if we create national regimes or community-based legal regimes
tailored to include customary law, it points to the second proposal.
As for the protection of TK by customary law and application of customary law by foreign
jurisdictions, it presupposes several legal conditions, and as well as facing practical
difficulties and objections on principle. As a first legal condition, the state hosting the
community must give legal force to its social norms and customary law. The recognition of
the customary law is a long-term claim of indigenous peoples and it might take a long time
before all their host states recognize it as part of their legal system. The second legal
condition that must be met is for states where TK is used must have a provision in their
private international law referring to the law of the state hosting the community, which in
turn must refer to the customary law of that community. If ever this condition is fulfilled, it
may not be before long. From a practical standpoint, considering customary law as a system
of protection of TK elicits a problem of clear identification of the relevant customs and its
precise content. It is unclear whether all different customary laws contain precise provisions
on the use of TK by third parties. For a potential user, it would create a lot of legal
uncertainty because it would be difficult to identify whether an element of TK is protected or
46
not, what are the exact limits of the protected knowledge, and who is the right holder. For TK
holders, it would be costly and difficult to go to a foreign court and bring evidence of the
content of customary law and its breach.
Last, there is a more fundamental objection. If customary law might be given legal force for
ruling the relations among members of the community, and possibly the behavior of third
parties when they are in the territory of the community, there is no clear reason why it should
apply to outsiders out of the community territory. Law has territorial effect. In some
circumstances, law applies to nationals outside national jurisdictions. In principle, law does
not apply to non-nationals outside of national territory. The same is true for local, regional or
community law.
If these proposals seem inadequate, there might be another possibility to articulate custom-
based innovation systems within a global intellectual property law system. It could be called
“contracting into customary law” and would combine property rights, contracts and possibly
organization.
2.4 Alternative: Contracting into Customary Law
47
The idea is that TK holders need a property right internationally recognized. This right would
acts as a hinge or mediating mechanism between customary intellectual property law in force
within the community and global intellectual property law that applies to relationships
between the community and third parties. Once granted this right, TK holders can write
licenses that embody the provisions of customary law and be in a position to enforce the
provisions of customary law either for breach of license or infringement of their property
right.
This solution has already been tested for other norms-based systems of innovation that had to
organize their articulation with the legal system of intellectual property.
The community of open-source software started as an innovation system regulated by a series
of community norms that ruled what knowledge had to be shared among all members and
what could be individually appropriated. The challenge is that this norms-based community is
located in a legal environment where its knowledge (source code) can be appropriated by
third parties or defecting members. The open-source community faced the same double threat
as a community of TK holders: the vulnerability of their norms-based regime to both external
and internal opportunism. One of the solutions adopted has been to obtain formal IPRs in
order to draft and enforce licenses that allow third parties to use, modify and redistribute the
knowledge so long as they respect the norms of the community embodied in the text of the
license. If a user violates the license, he can be sued for either breach of the license or
infringement of the copyright. In addition, to facilitate enforcement, rights are assigned to an
organization representative of the community (the Free Software Foundation) that is in
charge of legally enforcing the community norms (Mac Gowan, 2001).
48
A related situation can be observed for exchanges of research results among academic
scientists that are ruled by a community norm of shared access. In the USA, this community
norm has been challenged by a series of legal changes allowing the patenting of basic
research and therefore creating a legal environment where defecting members can
appropriate, or patent, their knowledge. To strengthen adhesion to the norm deemed essential
to innovation, the community of academic biologists has draft a Uniform Biological Material
Transfer Agreement (UBMTA) that embodies the community norm (Rai and Eisemberg,
2003). At first the UBMTA had limited success because it was voluntary and there was no
property right to enforce it, or organization in charge of enforcement. The results have been
better since similar provisions have been introduced in the guidelines of the National Institute
of Health (the main fund provider for biomedical research) endowed with a (limited) capacity
to enforce the norm.
Before coming back to TK, it is important to stress that the main common point between
communities of TK holders, academic scientists and open-source hackers is not the content of
their norms but the fact that they have norms-based innovation systems that must be
articulated with a legal intellectual property system.
49
I will now examine this proposal to “contract into customary law’ in relation with databases,
as I suggested in the above discussion that database could provide a useful protection for TK.
Once granted an internationally recognized property right, or equivalent form of control, TK
holders are in a position to design and impose different regimes of access according to the
provisions of customary law7. Access can be given to different categories of knowledge, users
(members vs. outsiders), different uses, like patent office searches of the prior art, research
purpose, commercial use, etc.). Additionally, different levels of access can be granted (full
access for research or partial access for prior art searches or samples to potential users, etc).
This is not at all a pure theoretical suggestion; several communities, including the North
American Tulalip Indian tribes, now envisage it (Hardison, 2005).
What would be the legal effect of customary law? The situation is slightly more complicated
because the best protection of databases consists in a combination of technological measures
(conditional access technology) and/or a legal property rights (copyright and perhaps the E.U.
sui generis right on databases). With conditional access technology, TK holders can more or
less perfectly control access to the database. Once access has been granted, the use of the TK
can be governed by licenses that include the provisions of customary law. Because licenses
only rule relations between co-contracting parties, TK holders may combine technological
measures with IPRs. In that case, third parties can be sued for infringement (Cf. section
1.4.1). Finally, the database maker (either a community or third party acting as a collective
rights organization managing the rights of different rights holders) (Cf. section 1.4.2) could
be in charge of legally enforcing the customary law.
Regarding the risk of internal defection, i.e. the temptation for a community member to
provide access to TK to a third parties in violation of customary law, it will not be suppressed
50
but limited by the creation of a database. A member would still be able to grant access to
some elements of TK – recall that a right on database is not a right to each of its elements –
but it is likely that potential users who would pay to induce a community member to violate
customary law would rather pay to access a complete and classified description of TK
contained within the database, as opposed to paying for bits of knowledge.
Conclusion
In this essay, I observed that limited progress has been made in international discussions on
the protection of TK holder’s intellectual property and more broadly on the recognition of
customary law. As for TK protection, I argued that the lack of headway might be due to the
fact that participants in the debates resort to implicit or explicit rights-based justifications.
These justifications play an important role in convincing people of the need for a protection
regime; however, they offer limited guidance on the precise content of a protection regime. I
suggested a double approach: first, looking how TK holders attempt in practice to protect
their knowledge; second resorting to utilitarianism as a complementary justification that
enables one to take into account the conditions of use of TK and the resulting effectiveness of
51
property rights. As for the recognition of customary law, I suggested a similar approach that
enables us to regard this issue as a demand for the articulation between customs or norms-
based systems of innovation and the legal system of intellectual property, and to look at
practical solutions tested on other norms-based systems.
In this article, I applied this reasoning with a special focus on one category of TK,
ethnobotanical knowledge, and I suggested that there are good arguments in favor of the
creation of databases and for contracting into customary law, which seems to accord with the
practices of some TK holders. However, I believe it would be useful to use a similar approach
for elements of TK with different utility and characteristics for which other mechanisms
might be more adequate.
In the current state of the law, local and indigenous communities have already started
creating databases and contracting into customary law, or at least continue to consider the
possibility. This suggests that, discussions and research should be less focused on the creation
of new laws and more considerate of how this process can be generalized and compatible.
From a technological standpoint, TK holders need common technical standards and common
classification systems. On the legal side, once a series of compatible TK databases are set up,
forms of collective management could be considered to reduce transaction costs.
Notes
* I am very grateful to Brendan Tobin, Carmen Richerzhagen, Heather Ritch, Noah Zerbe,
Maria Julia Oliva, Preston Hardison, Michael Gollin, Jerome Reichman, Geertrui Van
52
Overwalle, Tom Dedeurwaerdere, Sélim Louafi, Per Stromberg and an anonymous referee
for their help and encouragements.
** Center for Philosophy of Law, Catholic University of Louvain,
1) The Traditional Ecological Knowledge Prior Art Database, developed by the American
Association for the Advancement of Science, available for consultation at
http://ip.aaas.org/tekindex.nsf
2) Law 27811 of 2 July 2002 Established the Regime for the Protection of Collective
Knowledge of Indigenous People Related to Biodiversity. It provides for three types of
register: a notational public register for defensive protection and a national confidential
register and local registers for positive protection.
3) This analysis of utilitarian arguments as a justification for the protection of TK relies
heavily on the similar analysis developed by Padmashree Gehl Sampath. However, we reach
very different conclusions. She suggests resorting to trade secret while I suggest codifying
TK and creating databases (Gehl Sampath, 2003)
4) This does not mean that there is no reason for a comprehensive international treaty on TK
protection or model legislations by which states set themselves general objectives in terms of
TK protection. However, the implementation of those objectives will require different
53
mechanisms for different forms of TK with different usefulness. Actually, WIPO has already
divided TK in two categories: traditional knowledge sensu stricto and traditional cultural
expressions because of the difference of nature and usefulness of these categories of
knowledge, but further divisions might be necessary.
5) Natural product research is far from being the only source of novel active compounds; it is
rather a complement to the chemical synthesis of new drugs. However a study made in 1989
in the US estimated that, 25% of drugs’ active ingredients were extracted or derived from
plants. Another study carried out in 1993 estimated that in the US 57% of the prescriptions
contained at least one major active compound now or once derived after compounds derived
from biodiversity (Principe, 1989; Grifo and Downes, 1996).
6) Nevertheless, even if countries rich in traditional knowledge do not wish to enact an EU-
like sui generis right on database, there might be a possibility to benefit from the protection
in countries where this right exists even thought the EU directive says the opposite. After a
very detailed comparison between the two forms of copyright protection and the sui generis
right, Professor Davison argues that except differences of terminology, the sui generis right is
not different from copyright. Such a difference cannot mask the substantive reality that it is a
copyright for databases. If his analysis is right, the EU Member States have an obligation to
accord national treatment to all nationals of states that are signatories to international
agreements such as the TRIPS agreement and the Copyright Treaty. Therefore, the maker of a
TK database (or the state from which they are nationals) could use this argumentation to
claim the protection of the EU sui generis right within the territory of the states in which it is
in vigor (Davison, 2003, pp. 221-226).
7) Obviously TK holders willing to negotiate access to their knowledge against compensation
are submitted to the law of supply and demand, if they raise the condition of access, demand
is likely to go down
54
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